ShoshanaFelman’sThe
Juridical Unconscious: Trials and Traumas in the Twentieth Century is a
gripping read, a painstakingly researched and substantiated argument and a
marvelous example of interdisciplinary scholarship. Drawing on variety
theoretical resources from psychoanalysis, history, law, literature and
political history, Felman seeks to reveal and analyze
the link between trials and trauma that was conceptually articulated, as she
argues, in the second half of the twentieth century in the wake of the
Nuremberg trials. Observing that the emergence of this tight relationship
between justice and trauma results from three interrelated twentieth-century
occurrences: discovery of psychoanalysis, unprecedented number of disastrous
events on a mass scale, and unprecedented and repeated use of instruments of
law to cope with the traumatic legacies and the collective injuries left by
these events (p. 2), the author engages in a fascinating exploration of two of
the most celebrated trials of the twentieth century – the 1961 trial of Adolf
Eichmann and the 1995 O.J. Simpson trial.

Against the background of these two paradigmatic legal cases Felman sets out to develop the main features of the
interaction of the law and trauma. She argues that when trauma is confronted in
a courtroom, it is often inflicted with a particular judicial blindness that
inadvertently repeats the trauma and reenacts its structures. Great historical
trials are defined not only by the fact that they address (and redress)
traumas, but even more so because they constitute traumas of their own right
(p. 62). However, Felman goes a step further arguing
that the encounter of law with trauma impacts the structures of the law and
transforms that legal procedure, thereby giving to the trial a new
jurisprudential dimension. She furthermore argues that the introduction of the
dimension of trauma into the legal procedure unsettles the commonsensical
division between the public and the private and demands a radical rethinking of
the relationship between private and collective trauma. Felman’s
focus on O.J. Simpson and Eichmann trials convincingly shows how a structural
dichotomy between private and collective trauma trials collapses in the face of
what the author called “the indivisibility and the reversibility between private
and collective trauma” (p. 7).

The Simpson trial set out to address a private trauma and redress a private
injury. As Feldman correctly observes the trial that was supposed to be the
trial of an intimate violence that ultimately led to (private) murder
engendered such an immense collective echo and provoked such an intense
collective identification with the injuries under dispute (persecutions,
abuses, murders suffered by African Americans on the one hand, and
persecutions, abuses, murders suffered by women, on the other hand) that the
initially private traumas gradually came to represent archetypal societal
traumas in confrontation: race persecution and gender persecution. Inversely,
the Eichmann trial was a trial of collective crime of the persecution and
murder of Jews during the Holocaust. It was set out to deal with collective
injury and collective memory, but it did so by way of transforming a multitude
of fragmented, hitherto unarticulated private stories and traumatic memories
into a coherent legal narrative of a national catastrophe. The legal process of
transformation of individual into collective trauma and the parallel process of
legal translation of the ‘private’ into ‘public’ that characterized the
Eichmann trial again abolished the dichotomy between private and public and
thereby, as Felman argues, “anticipated by several
decades legal developments to come” (p.7).

The Juridical Unconscious opens with a reading of Walter Benjamin. Felman turns to Benjamin’s Judgment Day to examine his
thought about the relationship between history and justice. She reformulates
Benjamin’s concept in a secular manner as the day when civilization confronts
its violent history, the day when history itself is put on trial and when the
court provides a stage for the expression of what historically has been
expressionless (p. 12). Noting that a fundamental displacement occurred in the
relationship between history and trials in the wake of the Nuremberg trials, Felman argues that reparation of historical injustices – and
consequently, the trial of both history and law – has become part of the
function of all paradigmatic legal cases that followed. In Felman’s
reading of Benjamin, the Third Nuremberg trial (the Justice Case), in which the
Nazi judges, prosecutors, and officials of the Ministry of Justice were put on
trial and convicted, exposed the contradiction inherent in the nature of the
law itself: the law, and potentially every trial, is both redemptive and
oppressive. It is the very impossibility of redemption that engenders the
demand for justice – “one longs for justice and one hopes in legal justice
because the only secular redemption comes from the law” (p. 18). Benjamin is
silent for the rest of the text as if to enact Felman’s
theoretical point: at the heart of trauma trials lies the impossibility of
telling.

Armed with her reformulation of Walter Benjamin’s Judgment Day, Felman proposes a theory of legal repetition, based on a
comparative structural interpretation of a legal case (the Simpson trial) and
of a fictional story (Leo Tolstoy’s The Kreutzer Sonata). She argues
that the ‘trials of the century’ are subject to traumatic repetition, “in which
a trial unexpectedly reveals itself to be the post-traumatic legal reenactment,
or the deliberate historical reopening, of a previous case or of a different,
finished, previous trial” (p. 62). In an entirely original analysis, Felman reads the Simpson trial through the lens of
Tolstoy’s classic The Kreutzer Sonata, a story of a man who murders his
wife in an outburst of jealousy and is acquitted of the crime. Felman’s approach is rewarding because she goes beyond
adding yet another commentary on a much commented-on case. Stating that the law
remains professionally blind to the phenomenon of cultural or collective trauma
with which is nevertheless decisively and indissociably
tied up. It is precisely this judicial blindness, Felman
argues, that constitutes a legal trauma of its own right and “is therefore
bound to repeat itself through a traumatic legal repetition” (p. 57). Legal
memory is therefore constituted not only by the repetition of precedents but
also by “a forgotten chain of cultural wounds and by compulsive or unconscious
legal repetition of traumatic, wounding legal cases” (p. 57). A landmark trial
of historic significance is therefore characterized by “its complex traumatic
structure, its cross-legal nature, or the repetition it enacts of another trial
and its attempt to define legally something that is not reducible to legal
concepts” (p. 59).

Felman shows how these three features played
itself out during the Simpson trial. The trial’s traumatic structure was
determined by the way in which two traumas were pitted against each other: the
prosecutorial story of sex abuse and the defense’s narrative of race abuse. The
two traumas mobilized the collective anger and pain seeking “to overpower one
another and to silence each other’s outcry” (p. 60). The defendant’s act of
murdering his wife diminished as he was cast as the victim of black
persecution, the history of which was brought to the trial. The Simpson trial,
argued Felman, repeated the relatively recent Rodney
King first trial (1992) and even a more remote Dred
Scott case (1857) rendering invisible the relation between domestic violence
and marriage to which we remain culturally blind. Felman
now turns to Tolstoy to explore the “inherent cultural invisibility of the
battered face” (p. 79), locating striking resonances between the descriptions
of Pozdnyshev’s description of his murdered wife’s
face and the bruised, swollen and disfigured face of Nicole Brown-Simpson. The
jury’s “looking through the beaten body” (p. 79) despite the existing visual
evidence constitutes the very blow that inflicts the legal trauma. Law thus
becomes the very vehicle of the abuse for gender, “a tacit, indirect, seeming legitimation of gender abuse that aggravated, ratified the
trauma through the channels of a vehicle of law” (p. 91).

Although Felman’s analysis of the Eichmann trial
casts no doubt on her conviction that the trial of the infamous Nazi criminal
was a ‘trial of the century’, she refrains from discussing the three features
of a landmark trial that she proposed as an entry point into the Simpson trial.
This leads to some omissions that would have been both interesting and
important to explore. The complex traumatic structure of the trial could, for
example, be examined by means of discussing the confrontation of the trauma of
the European Holocaust and the traumas generated by the Middle East conflict.
Whereas the trauma engendered by the Simpson trial resulted from a
confrontation of two societal traumas – racial and gender abuse – the Eichmann
trial streamlined several traumas into the unifying traumatic narrative of the
Holocaust. Its constitutive traumas were thus silenced. For example: Oriental
Jews, who had suffered persecution in their Arabic / Muslim host countries as a
result of the creation of Israel were reduced to second-class citizens upon
their arrival to Israel and this bitter disappointment led them to revolt
against the government policy in the 1950s. The Eichmann trial included
Oriental Jews into the narrative of the Holocaust in order to silence the
original trauma of their failed integration to the predominant Ashkenazi
society by emphasizing the connections between the Nazis and the Arabs, thereby
reframing the Middle East conflict in the Holocaust trauma. The consequences of
this traumatic displacement are still with us today.

Furthermore, missing is the reference to the 1954 Kastner
trial, in which Rudolf Kastner, a Hungarian Zionist
leader who negotiated with the Nazis and eventually managed to save 1685
Hungarian Jews was accused of collaboration with the Nazis. Rudolf Kastner was assassinated before the Supreme Court reversed
the judgment in 1955. If the first Rodney King trial determined the outcome of
the Simpson trial, the Kastner trial certainly
dictated the structure and the content of the Eichmann trial. Because the Kastner trial so much divided the Israeli public, the
Eichmann trial had to avoid the potentially contentious issues (namely the
behavior of the Jewish leadership during the Nazi regime) in order to unify the
country around a common tragedy.

Felman’s discussion of the Eichmann trial is
nevertheless a fascinating piece of first-class scholarship. Her engagement
with Hannah Arendt’s controversial account of the trial in Eichmann in
Jerusalem is shrewd and captivating, although certain aspects of Felman’s reading of the trial contra Arendt
sometimes fall short of being entirely convincing. Felman’s
main contention against Arendt is her objection to the narrative perspective
that puts the victims instead of the perpetrator and his crimes in the centre
of the trial. Felman claims that it is precisely the
focus on the victims that allows for a “legal process of translation of
thousands of private, secret traumas into one collective, public and communally
acknowledged one” (p. 124). The trial provided, Felman
argues, the dead the chance to speak and to become the accusing voice. This
ambition to speak for the dead was unequivocally articulated by the Attorney
General Gideon Hausner when he started his opening
speech with the words: “When I stand before you here, Judges of Israel, to lead
the Prosecution of Adolf Eichmann, I am not standing alone. With me are six
million accusers.”1 Arendt’s insistence that the focus of the trial
should be on the perpetrator and his deeds rather than the victims and their
suffering was, as Felman would put it,
jurisprudentially conservative (p. 122). Felman
argues that the importance of the Eichmann trial lies precisely in the
conceptual revolution of the victims (p. 126) that for the first time in
history write their own history. She corroborates this observation with a
statement that “the emotional explosion triggered by the Eichmann trial and by
the revolution in the victims it dramatically and morally affected publicly
unlocked this silence [about the Holocaust].” (p. 127). Yet, Felman does not engage with Arendt’s very accurate and
legitimate contention that the focus on the victim was unmasterable
and that the way in which the trial was conceived and conducted resulted in a traumatisation of the Israeli society that has been
discussed at length elsewhere. The emphasis on the history of Jewish suffering,
the distinction between crimes against humanity and crimes against the Jewish
people, and the whole architecture of the drama that was the Eichmann trial
served a certain number of clearly delimited political and societal goals2
but as Arendt put it: “Manipulations of opinion insofar as they are inspired by
well-defined interests, have limited goals; their effect, however, if they
happen to touch upon an issue of authentic concern, is no longer subject to
their control and may easily produce consequences they never foresaw or
intended.”3Felman’s otherwise brilliant engagement with Arendt
that includes several truly creative twists fails to address the failure of the
Eichmann trial that – to paraphrase Felman – at the
heart of the unmastered past failed to master
an abyss.

But ShoshanaFelman has
to be given credit for advancing a bold and engaging argument that what Arendt
calls the failures of the trial were necessary failures that exploded
the legal framework to legally say something that is not containable precisely
by the concepts and the logic of the legal and furthermore, that “great trials
are perhaps specifically those trials whose very failures have their own
necessity and their own literary, cultural, and jurisprudential speaking power”
(p. 166).

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